Lawler v. Green , 2024 Ohio 2046 ( 2024 )

[Cite as Lawler v. Green, 2024-Ohio-2046.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
MICHAEL LAWLER, :
Plaintiff-Appellant, : CASE NO. 23CA10
v. :
BROOKLYN GREEN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
________________________________________________________________
APPEARANCES:
Evan N. Wagner, Dublin, Ohio, for Appellant.
Brooklyn Green, pro se1.
Thelma C. Fosselman, Attorney for Pickaway County Job and Family
Services, Division of Child Support, Circleville, Ohio, for
Appellee.
_______________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:5-22-24
ABELE, J.
{¶1} This is an appeal from a Pickaway County Common Pleas
Court, Juvenile Division, judgment that found Michael Lawler,
plaintiff below and appellant herein, in contempt of court for
the failure to pay child support.
{¶2} Appellant assigns one error for review.
“THE TRIAL COURT ABUSED ITS DISCRETION BY
1
Appellee did not file a brief and did not participate in
this appeal.
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FINDING APPELLANT IN CONTEMPT OF COURT FOR
FAILING TO PAY CHILD SUPPORT BECAUSE
APPELLANT PRESENTED COMPETENT, CREDIBLE
EVIDENCE AND/OR LEGALLY SUFFICIENT EVIDENCE
ESTABLISHING APPELLANT’S INABILITY TO PAY.”
{¶3} Appellant, biological father of minor K.B., and mother
Brooklyn Green, appellee, entered into a shared parenting
agreement on June 7, 2018, that established, inter alia,
appellant’s obligation to pay $238.64 per month child support.
{¶4} On September 19, 2022, the Pickaway County Child
Support Enforcement Agency (PCCSEA) filed an Administrative
Adjustment Recommendation that (1) required appellant, obligor,
to pay $449.98 child support per month, (2) presumed appellee,
obligee, to be the appropriate parent to provide health
insurance coverage for the child, and (3) required that when
health insurance coverage becomes available to obligor at a
reasonable cost, the obligor shall inform the agency and may
seek a modification of the health care recommendation.
After ancillary proceedings on other issues, the matter
came on for a hearing before a magistrate on appellant’s
objections to the Administrative Adjustment Recommendation.
After the hearing, the magistrate found that because appellant
failed to establish his service-related Veterans Administration
(VA) benefits are “means-tested,” the child support calculation
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should include the total amount of the veteran’s benefits. The
controlling statute is R.C. 3119.01(C)(12):
Gross income” means, except as excluded in division
(C)(1) of this section, the total of all earned and
unearned income from all sources during a calendar year,
whether or not the income is taxable, and includes income
from * * * benefits that are not means-tested and that
are received by and in the possession of the veteran who
is the beneficiary for any service-connected disability
under a program or law administered by the United States
department of veterans’ affairs or veterans’
administration;
Further, the statute excludes the following from gross income:
“Gross income” does not include any of the following:
(a) Benefits received from means-tested government
administered programs, including Ohio works first;
prevention, retention, and contingency; means-tested
veterans’ benefits;
(b) Benefits for any service-connected disability under
a program or law administered by the United States
department of veterans’ affairs or veterans’
administration that are not means-tested, that have not
been distributed to the veteran who is the beneficiary
of the benefits, and that are in the possession of the
United States department of veterans affairs or
veterans’ administration;
{¶5} The magistrate stated that the threshold issue
revolves around characterizing plaintiff’s VA disability
benefits. As a general rule, non-means-tested benefits are
included in gross income to calculate child support, but the
statute excludes non-means-tested benefits that have not yet
been distributed to a veteran and that are in the VA’s
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possession. The magistrate cited a Second District case that
held that the magistrate had erred when excluding VA disability
benefits from the obligor’s gross income because the evidence in
that record did not show that met it the exclusion requirements.
Mossing-Landers v. Landers, 2016-Ohio-7625, 70 N.E.3d 1060 (2d
Dist.). In the case at bar, the magistrate found that in light
of Landers, appellant failed to establish that his service-
related disability benefits are “means-tested” or meet the
exclusion in R.C. 3119.01(C)(12)(b). Thus, the magistrate
included the total amount of appellant’s service-related
disability benefits in its calculation.
{¶6} After determining that the agency did not err in its
calculation, the magistrate examined the obligee’s offer for a
support deviation. The magistrate noted that the statutory
guideline in this case would be $422.38 per month for current
child support and $18.78 per month for current cash medical
support, for a total of $449.98 per month. The magistrate noted
a significant increase from the original order of $238.64 per
month, and further noted that the order “was effective 4/13/18,
however, Obligor has not paid anything on this order since
inception. An arrears repayment order was added to this figure.
Arrears are now nearly $10,000.”
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{¶7} Consequently, the magistrate found that a deviation is
in the child’s best interests based on the obligee’s knowing and
voluntary request and the court’s modification of the income tax
dependency benefit. Thus, the magistrate recommended that (1)
the obligee be entitled to claim the minor child as a dependent
for income tax purposes every year commencing in 2023, and “a
deviation to $200 per month, plus processing fees, cash medical
support and arrears repayment, would be warranted.”
Consequently, the magistrate recommended (1) the effective date
of these orders be October 1, 2022, (2) obligor shall pay $200,
plus processing charge, per month, for current child support,
and $18.78, plus processing charge, per month, for cash medical
support, for a total of $223.16 per month, (3) obligor shall
repay arrears for current child support at a rate of $20 per
month, plus processing fees, and for cash medical support at the
rate of $1.88 per month, plus processing fees.
{¶8} Subsequently, PCCSEA asked the trial court to find
appellant in contempt for his failure to comply with the court’s
April 13, 2018 child support order. In addition, appellant
objected to the magistrate’s January 4, 2023 recommendation.
The trial court’s March 13, 2023 hearing addressed both the
appellant’s objections and PCCSEA’s contempt motion.
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{¶9} At the hearing, Pickaway County Juvenile and Family
Services and Child Support Division Case Manager Cleresa Brust
testified that she reviewed appellant’s payment history for the
past 12 months and brought a copy of the pay record from the
beginning of the child support order. Brust indicated that the
current monthly obligation totaled $286.37 and appellant’s “past
due unpaid balance is $10,610.53 * * * through February 28,
2023.” Appellant made “zero payments in the past 12 months,”
made his last payment on February 25, 2022, and only made five
payments in the life of the order. Brust also noted that
appellant’s veteran’s benefit would soon increase to $3857.34.
{¶10} Appellant testified that he has two children,
including the child who is the subject of the child support
order. Appellant’s monthly obligation in the present case is
$286.37. Appellant also owes $420 per month in child support in
Fairfield County. Although appellant acknowledged that child
support orders have been in place for K.G. since 2018, he only
made five payments even though he is aware that he is required
to make child support payments. Appellant stated, however, that
he is unable to do so because of his disability. Appellant
further testified, “I was 50% disabled back in 2012 * * * a
mixture of PTSD, my lower back, ankle, and tinnitus.” “[T]hen
in 2020, upon leaving the treatment center, they had increased
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my disability * * * to 70% * * * [w]ith the Unemployability,
taking it up to 100%.” Appellant explained that he is a “100%
disabled veteran with the VA, Individual Unemployability and
posttraumatic stress disorder.” Appellant receives “a little
over thirty-five hundred” in monthly veteran’s benefits but
stated that he is “very strapped for funds.”
{¶11} When asked if he understood that current law requires
him to pay child support from his veteran’s benefits, appellant
disagreed and testified:
[I]n 2018 my life fell apart, I went from having my son,
two girls that I considered my own, a daughter on the
way, and someone that I thought I was going to marry to
my life going into shambles. Uh, I lost my job, lost my
house, lost a couple cars, finances completely ruined,
um, talked with [the minor child’s] Mom and we discussed,
my Dad had offered me a chance to get down to Florida,
try to get away, reset. Uh, he had some friends that he
suggested I could try to do some work with, which didn’t
pan out. Uh, that was in 2018. Uh, my drinking got out
of hand, spiraled out of control, and that was in 2019
is when it got really bad. Uh, October,
September/October of 2019, the VA had ran some tests and
mentioned I was encroaching with a fatty liver, and had
really encouraged me to quit drinking. Um, at the time
I was 29 years old, so like, I didn’t really take it
seriously for a few months and then; I did, I was going
to more VA appointments, but I didn’t quit drinking until
January 4, 2020, and I have not had a drink since that
day. So, a little over 1160 days, 1165. A little over
three years. Um, since then, the VA has been working
with me quite a bit. A lot of physical therapy. A lot
of other things have happened to me that they’re trying
to work on getting me back together, kind of piecing me
back together. It was during that three month stay at
the inpatient rehab that they decided that I was
disabled. But, but more so than what I already was.
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{¶12} The prosecutor added that appellant’s benefit is also
calculated based on “the fact that he has two kids and should be
providing a portion of his benefit for them,” and suggested that
appellant could get a minor job to earn $300 to pay his monthly
support if he genuinely does not have the income to pay his
bills and his child support. Appellant, however, stated that he
is unable to work at all. When asked where his $3500 per month
benefit “is going,” appellant testified that his two children
are with him part-time. In addition, he pays $1050 for rent,
$458 for a Ford Fiesta, $326 for car insurance, $362 for water,
sewer and trash, $286 for phone, $90 every six weeks for his
daughter K.G. for gymnastics, $420 for Fairfield County child
support, $400-$500 for gas, plus food, and his credit card is
“maxed out.”
{¶13} Appellant further stated that he travels to Florida to
help his grandmother, uses her address, receives therapy through
the Bay Pines VA system in Florida, possesses a Florida driver’s
license, and registers his car in Florida. Appellant
acknowledged that he purchased a $1000 boat, but the marina has
since sold and appellant is no longer permitted to dock his boat
there, “but my boat is broken down and I have no way to get it
out of there.” The second part of the hearing dealt with
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whether appellant’s VA benefits should be excluded from
appellant’s gross income for child support calculation.
{¶14} The trial court issued its decision on April 7, 2023,
adopted the magistrate’s decision, and found that appellant
received a $3,548 monthly Individual Unemployability (IU) VA
benefit. The court acknowledged that appellant argued that his
benefit should not be included as income to establish a child
support order because, if he earns more than a certain amount of
income ($14,094) per year, the VA will terminate his IU benefit.
The court, however, found appellant’s position flawed:
He is granted the IU benefit because of his inability to
work based upon a disability. If he were awarded the IU
benefit because he was not able to earn more than the
poverty level income (in this case, $14,094 per year for
a household for one person under the age of 65), then
the IU benefit would be “means tested” and not includable
income. The reason that the VA monitors the recipient’s
income is that if the recipient is earning more than
poverty level income, then the VA would conclude that
the recipient was, in fact, able to obtain and maintain
employment DESPITE his disability. The recipient would
still receive his allocation for the percentage of his
disability (70%); however, he would not receive the
additional IU benefits, which result in his benefit
being increased to the level of payment associated with
100% disability.
{¶15} The court further quoted a January 4, 2023 letter from
Assistant Director Pickaway County Veteran’s Services Todd
Huffman that provides “a cogent explanation of IU benefits”:
IU is a benefit that is awarded to veterans that are
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unable to work due to service-connected disabilities
that don’t meet the 100% disqualification but can be
paid at a 100% rating. To be eligible you must be unable
to hold a job as a result of service-connected
disabilities. This means maintaining substantially
gainful employment. * * * Therefore, it is based off a
disability, not off income and is not a means tested
benefit. Benefits based on income would be considered
service-connected pension, which is means tested and
based off income.
{¶16} Therefore, the trial court ordered: (1) the effective
date of the order be October 1, 2022, (2) obligor pay $200, plus
processing charge, per month for current child support, and $4,
plus processing charge, per month for cash medical support, for
a total of $204, processing charge included, per month, (3)
obligor pay arrears for current support at a rate of $40 per
month, plus processing fees, and for cash medical support, if
any, at the rate of $5 per month, plus processing fees.
{¶17} Regarding the contempt motion, the trial court found
that from March 1, 2022 through February 28, 2023, appellant
paid zero toward his child support obligation. The court noted
that, although appellant argued that he did not have sufficient
income to pay both his bills and child support and that he
provided a lengthy description of his bills, appellant “failed
to provide a justifiable defense to not paying his child support
order. Obligor has discretionary income that would be
sufficient to pay his support. Child support takes precedence
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over credit card bills.” Thus, the court found appellant in
contempt, sentenced him to serve 10 days in jail, and stayed the
sentence on the condition of future compliance with court
orders. The court indicated that conditions to purge include:
(1) obligor shall notify CSEA within 72 hours of any change in
employment or address, and (2) obligor shall make voluntary
payments on the child support obligation.
{¶18} This appeal of the contempt order followed.
I.
{¶19} In his sole assignment of error, appellant asserts
that the trial court abused its discretion when it found him in
contempt for his failure to comply with the child support order.
Appellant believes he presented competent, credible evidence
regarding his inability to pay child support. In particular,
appellant contends that his VA benefits are insufficient to
permit him to pay his child support obligation, and he will lose
his benefits if he seeks employment.
{¶20} A court order for child support necessarily involves a
court finding that the obligor can pay. The burden is on the
obligor by allegations and proof to establish his or her
inability to pay. Carroll v. Detty, 113 Ohio App.3d 708, 681
N.E.2d 1383 (4th Dist.1996), citing State ex rel. Cook v. Cook,
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66 Ohio St. 566, 64 N.E. 567 (1902). If a party makes a good
faith effort to pay support, contempt is unjustified. Raleigh
v. Hardy, 5th Dist. No. 08CA1040, 2009-Ohio-4829, ¶ 47, citing
Courtney v. Courtney, 16 Ohio App.3d 329, 475 N.E.2d 1284 (3d
Dist.1984). The burden to show an inability to pay is on the
party being held in contempt. Id. citing Farrell v. Farrell,
5th Dist. No. 2008-CA-0080, 2009-Ohio-1341, ¶ 15.
{¶21} Because a child support obligation does not fall
within the meaning of “debt,” as defined in Section 15, Article
I of the Ohio Constitution, an order to pay support may be
enforced through contempt proceedings. R.C. 2705.031 authorizes
a party with a legal claim to child support to initiate a
contempt action against the obligor for failure to pay child
support. “Contempt of court” is defined as the disobedience or
disregard of a court order or a command of judicial authority.
State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d
265 (2001); Montgomery v. Montgomery, 4th Dist. Scioto No.
03CA2923, 03CA2925, 2004-Ohio-6926, ¶ 11; R.C. 2705.02(A).
Contempt encompasses conduct that engenders disrespect for the
administration of justice or which tends to embarrass, impede or
disturb a court in performing its function. Denovchek v.
Trumbull Cty. Bd. of Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d
1362 (1988). Civil contempt exists when a party fails to do
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something the court orders to benefit an opposing party.
Montgomery, supra. Usually, contempt proceedings in domestic
relations cases are indirect and civil in nature because they
aim to coerce or encourage future compliance with the court’s
orders and concern centers on behavior outside the court’s
presence. Flowers v. Flowers, 10th Dist. Franklin No. 10AP-
1176, 2011-Ohio-5972. The failure to pay child support is
typically punished by civil contempt, Dressler v. Dressler, 12th
Dist. Warren Nos. CA2002-08-085 & CA2002-11-128, 2003-Ohio-5115,
¶ 14, as is interference with visitation, Mascorro v. Mascorro,
2d Dist. Montgomery No. 17945, 2000 WL 731751 (Jun.9, 2000).
{¶22} “A prima facie case of civil contempt is made when the
moving party proves both the existence of a court order and the
nonmoving party’s noncompliance with the terms of the order.”
Jenkins v. Jenkins, 2012-Ohio-4182, 975 N.E.2d 1060, ¶ 12 (2d
Dist.), quoting Wolf v. Wolf, 1st Dist. Hamilton No. C-090587,
2010-Ohio-2762, ¶ 13. Clear and convincing evidence must
support a civil contempt finding. See Brown v. Executive 200,
Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980). Clear and
convincing evidence is the level of proof that would “cause a
trier of fact to develop a firm belief or conviction as to the
facts sought to be proven.” Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus. Once a
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plaintiff establishes a violation, the defendant bears the
burden to prove an inability to comply, and absent that proof, a
contempt finding is appropriate. Burks v. Burks, 2d Dist.
Montgomery No. 28349, 2019-Ohio-4292, ¶ 22.
{¶23} Generally, a trial court possesses broad discretion
when it considers a contempt motion. Burchett v. Burchett, 4th
Dist. Scioto No. 16CA3784, 2017-Ohio-8124, ¶ 19, Jones v. Jones,
4th Dist. Highland No. 20CA3, 2021-Ohio-1498, ¶ 28; State ex
rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-
Ohio-5614, 3 N.E.3d 179, ¶ 29. Thus, absent an abuse of
discretion, an appellate court will ordinarily uphold a trial
court’s contempt decision. E.g., Burchett at ¶ 19; Welch v.
Muir, 4th Dist. Washington No. 08CA32, 2009-Ohio-3575, ¶ 10. An
abuse of discretion is “‘an unreasonable, arbitrary or
unconscionable use of discretion * * *.’” State v. Kirkland,
140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting
State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d
671, ¶ 23. An appellate court may not find an abuse of
discretion simply by substituting its judgment for that of the
trial court. State ex rel. Duncan v. Chippewa Twp. Trustees, 73
Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1,
57 Ohio St.3d 135, 137–138, 566 N.E.2d 1181 (1991). Instead, to
find an abuse of discretion, “the result must be so palpably and
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grossly violative of fact or logic that it evidences not the
exercise of will but the perversity of will, not the exercise of
judgment but the defiance of judgment, not the exercise of
reason but instead passion or bias.” Nakoff v. Fairview Gen.
Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996); Bragg v.
Hatfield, 4th Dist. No. 02CA567, 2003–Ohio–1441, ¶ 24; McDonald
v. McDonald, 4th Dist. Highland No. 12CA1, 2013-Ohio-470, ¶ 14.
{¶24} In the case sub judice, after our review we conclude
that the trial court did not abuse its discretion when it found
appellant in contempt for his failure to pay child support.
Although we recognize that living expenses have greatly
increased especially during the past few years, we believe that
appellant did not demonstrate that he made a good faith effort
to pay his child support or that he could not pay. During the
contempt proceedings, appellant argued that the court should not
include his VA benefits as income for calculating child support
and that he cannot pay child support based on his unemployment.
However, the PCCSEA adduced evidence that appellant receives a $
3548 veteran’s monthly benefit. The trial court’s April 7, 2023
entry stated:
[Appellant] testified that he has not paid child support
order as ordered. He stated that he does not have
sufficient income to pay his bills and to pay child
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support. Obligor gave a lengthy description of his
bills. The court finds that he failed to provide a
justifiable defense to not paying his child support
order. Obligor has discretionary income that would be
sufficient to pay his support. Child support takes
precedence over credit card bills.
Our review of the record also reveals that appellant did
present testimony and evidence concerning his monthly expenses.
However, as appellee points out, although appellant testified
that he is “strapped,” he also testified he travels frequently
to his grandmother’s home in Florida and that he purchased a
boat despite knowing that he owed child support.
{¶25} Appellee further points out that in April 2018,
appellant knowingly and willingly entered into an agreement to
pay child support. However, he did not make a payment until
December 26, 2019. Appellee also points to Rose v. Rose, 481
U.S. 619, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987), for the
proposition that Congress intended veterans disability benefits
to be used partly for the support of the veteran’s family.
Thus, although the inability to pay may be a valid defense to a
contempt finding, appellant failed to present any evidence of
efforts to mitigate his expenses.
{¶26} Our review of the hearing transcript reveals that the
trial court allowed appellant, pro se at the hearing, an
opportunity to present any testimony and evidence that he
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desired to present. In addition, the court overlooked
appellant’s failure to follow rules of procedure and to file a
transcript of the magistrate’s hearing. Once again, after our
review, we believe that the trial court did not abuse its
discretion when it found appellant in contempt for failing to
pay child support. As the United States Supreme Court
acknowledged in Rose, “[w]e fully appreciate the physical
sacrifice appellant made while in the military service of his
country, and we acknowledge his needs as a totally disabled
veteran for medical assistance and financial support.” Id. at
636. However, appellant’s financial obligations to his child
demand priority over discretionary spending.2
{¶27} Consequently, for all of the foregoing reasons, we
overrule appellant’s assignment of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
2
Although we recognize that appellant may be displeased
with our decision, we nevertheless wish to thank appellant for
his military service and to encourage his continued efforts to
get his life in order. We understand that appellant has had
great difficulty in his attempt to deal with PTSD and other
issues, but we nevertheless recognize that appellant has
exhibited the ability to move forward for his own benefit and
for the benefit of his children. We sincerely hope that
appellant continues to see progress in his life.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellant
shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Pickaway County Common Pleas Court, Juvenile
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_______________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.